Fate of sickest may hinge on court

Lawyers for President Barack Obama made a high-stakes gamble on the way to the Supreme Court: If you strike down the individual mandate, they told the justices, you’ve also got to kill the guarantee of coverage for people with pre-existing conditions.

All of a sudden, that’s looking like a bad bet.

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The conservative justices took turns beating up on the individual mandate during Tuesday’s oral arguments. And they’ll be back for more Wednesday morning in an hour-and-a-half session focused on what remains of the law if the individual mandate goes down.

There’s plenty there. In addition to the guaranteed coverage provision, the Affordable Care Act includes sweeping changes to the way insurers operate, incentives to change how providers deliver health care, an expansion of Medicaid and federal subsidies to help low- and middle-income families purchase insurance, and rules allowing young adults to stay on their parents’ policies.

But opponents say none of that would have passed Congress if the mandate wasn’t included. Health care experts say it’s not just a legal strategy to tie the mandate and pre-existing condition coverage together — bad things really will happen if the coverage stays and the mandate goes.

And now, the court will have to decide what goes and what stays if the individual mandate is gone.

“Without the individual mandate at its heart, no statute remotely resembling the act would have or could have been enacted,” Karen Harned, executive director of the business association challenging the law at the Supreme Court, said at a Washington forum last week.

At the heart of the “severability” question is whether Congress would have enacted such a sweeping law that touches all parts of the health care system without a mechanism to get broad participation in the system. Supporters of the law argue yes, citing in court briefs that most of the law’s hundreds of provisions could be implemented without the mandate.

That may not be true of the law’s pre-existing condition coverage, though. In Tuesday’s court arguments, Solicitor General Donald Verrilli previewed the case that the Obama administration will make on Wednesday — that the mandate is needed for the success of the “guaranteed issue” provision, which requires insurers to accept everyone who applies for coverage, and the “community rating” provision, which bans them from charging more to people with health problems.

“Without [the mandate], guaranteed issue and community rating will, as the experience in the states showed, make matters worse, not better,” Verrilli said. “There will be fewer people covered; it will cost more.”

Even without the mandate, opponents of the law won’t treat the rest of it as legitimate. In fact, they’re likely to try even harder to get rid of it.

The issue of severability wouldn’t have come up if the ACA passed through the normal legislative process. Unlike many other laws, health reform has no clause that says the rest of the law will still stand if the courts knock out any one piece of it.

The House version of the bill included a clause that said the law could stand without the individual mandate, but lawmakers never had a chance to add it to the Senate bill, which became the basis of the law. That’s because it was passed through the budget reconciliation process, which allowed it to clear the Senate with just 51 votes. The catch: lawmakers couldn’t add any provision that didn’t have a budget impact — so they couldn’t add a severability clause.